The Issue Whether Respondent's license should be disciplined for reasons stated in the Administrative Complaint filed herein dated November 30, 1987.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, is the State agency charged with regulating the construction industry and is responsible for prosecuting administrative complaints issued pursuant to Chapters 489 and 455, Florida Statutes and rules and regulations promulgated pursuant thereto. At times material hereto, Respondent, George Walton, was licensed as a Certified General Contractor in Florida and holds License No. CG C031400. (Petitioner's exhibit E.) At all times material hereto, Respondent was the sole qualifying agent for AMI Improvements Incorporated (AMI). On March 10, 1987, David Lee entered into a contract with AMI to remodel his bathrooms. The scope of the job entailed tearing out interior walls to accommodate a new bathroom, remove a closet to fit a newly installed tub, installation of a marble tub with pad and step, installation of a vanity and tile floors, mirroring the walls, installation of lights over the sink and tub, installation of new faucets and tape and finish the walls. (Petitioner's exhibit 1.) The total contract price was $6,332.50. Pursuant to the contract, AMI was required to obtain the necessary building permits for the job. On April 7, 1987, AMI began remodeling the Lee's bathroom and was paid all but $502.27 of the total contract price by that time. Respondent did not obtain a permit prior to commencement of the work on April 7, 1987. A building permit was required to remodel a bathroom in Broward County in 1987. (Testimony of Susan Marchitello, Custodian of Records for the Broward County Building and Zoning Enforcement Division.) On April 23, 1987, a notice of violation from Broward County was issued to David Lee requiring that he cease and desist from continuing the remodeling work in his home, which work was being performed by AMI. AMI suspended work on the Lee residence on approximately April 23, 1987, and it remained dormant until he applied for a permit on May 7, 1987. While the work was stopped by the cease and desist order, Lee had no bathroom in his home. Upon issuance of the cease and desist order, Lee contacted Richard Bird of AMI, who advised that AMI customarily does not pull permits for inside work as they are normally in and out before anything is seen by building officials. AMI refused to pull the building permits and Lee therefore applied for, and obtained the building permits. AMI's plans and intentions were to complete the construction work at the Lee's home without a building permit. An Owner-Builder permit was issued to Mr. Lee on May 7, 1987. (Respondent's Exhibit 1.) Mr. Lee was without a toilet for 21 days and without a tub and shower for approximately six weeks. AMI promised Mr. Lee that the work would be completed within two weeks after the permits were obtained. Despite this promise, the bathroom did not pass final inspection until July 21, 1987, approximately two months after the permits were obtained. Mr. Lee communicated his concern to AMI in the form of a "punch list" of items to repair. AMI refused to repair those items and Lee, in turn, contacted Daniel Durbano Construction during August 1987 who provided Lee with a proposal to complete those items either that were not completed or to complete/repair those items that were not of workmanlike quality. Durbano presented Lee with his proposal on August 4, 1987, with an estimated cost (to repair the Lee's home) of $3,858.75. (Petitioner's exhibit 3.) After Durbano's proposal was presented to Lee, AMI returned to install the mirror around the tub and the shower stall enclosure. During the time when Lee was negotiating with Durbano about completing the project undertaken by AMI, Respondent was never at the subject site. When a final inspection was called for by Lee, the work completed by AMI did not pass the final inspection. Among the items listed in Lee's "punch list" were (1) the shower stall failed to drain properly as the pitch was almost flat and water settled around the bottom of the shower instead of draining, (2) the marble tub step is crooked and is larger on one end that on the other, (3) the knee wall is crooked and is approximately one inch thicker at the top than at the bottom, (4) the bathroom window does not open properly, (5) the door jam going into the master bedroom is improperly installed, and (6) the plastic caps that affix the toilet to the floor were lost. Lee prepared a second "punch list" and presented it to AMI during August 1987. Among the items listed as deficient were that the floor was uneven and the carpet or tile flooring could not be installed without correcting the floor. Daniel Durbano, a general contractor who is licensed in Florida, performed an inspection of the subject work performed by AMI during September 1987. Durbano found that the tile was not properly laid and the floors were "bumpy and wavy." He also found that the drywall was "wavy" and needed preparation to install wallpaper, there was no casing on the door entrance from the bathroom to the master bedroom, and that the cost would be approximately 20% less than the original estimate of $3,800 that he provided Lee. (Petitioner's exhibit 5.) Respondent is 64 years old and has been a certified contractor since 1954. He is licensed in the states of Ohio, West Virginia, and Florida. Respondent has apprenticed as a carpenter, brick layer, electrician and a plumber. He has been licensed in Florida since 1969. Respondent has twice been a qualifier, once for AMI and with a present engagement, Fixel's Fix It, Inc. As a qualifier for AMI, Respondent pulled permits and supervised construction during the periods of January 1987 through August 1987. Respondent no longer is qualifier for, or is otherwise affiliated with, AMI. Respondent was not aware of the work being performed at the Lee residence, although he was engaged, as a qualifier, to supervise all jobs where AMI was required to obtain a permit. Respondent first learned of problems with the Lee job when he was contacted by Petitioner during December of 1987. Respondent admits that although some of the work done in the Lee's home was probably up to industry's standards, there were areas of workmanship that should have been performed better. Respondent also admits that he relied on Richard Bird, a builder/developer affiliated as a coordinator with AMI and AMI's principal/owner, Tony Enzo, to inform him of projects that needed his supervision or assistance in obtaining permits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that 1/ Petitioner enter a final order imposing an Administrative Fine in the amount of $1,000, payable to Petitioner within thirty days of entry of its final order, for the above-referenced violations of Chapter 489, Florida Statutes. RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989.
The Issue The issue is whether Respondent engaged in the negligent practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.
Findings Of Fact Respondent has been a licensed professional engineer in Florida since 1994, holding license number 47676. He is not licensed in any other states. Respondent is a member of the American Society of Civil Engineers, National Society of Professional Engineers, Structural Engineers Council, and National Academy of Forensic Engineers. He also serves as a subject-matter expert for the Florida Construction Industry Licensing Board, and he helps prepare and evaluate contractor licensing examinations. Respondent is also a licensed general contractor. This case involves engineering drawings that Respondent prepared for a residential project known as the Sorrentino Residence. The Sorrentino Residence is located in Hillsborough County. The drawings, which are signed and sealed by Respondent, represent that the design portrayed by the drawings is “in accordance” with the SBCCI Standard Building Code, 1994 Edition[, and t]he wind design was conducted using a 110 MPH wind speed.” Prior to the Sorrentino Residence, Respondent had been the engineer of residence for over 20 projects. About 10 of these projects had been wood-frame homes, such as the home designed and constructed as the Sorrentino Residence. The owner of the Sorrentino Residence purchased plans from Amerilink. A mechanical/electrical engineering firm, Parker-Stevens, obtained the consent of Amerilink to alter these plans for the Sorrentino Residence. One of the changes increased the thickness of the second floor, which raised the overall building height by 12 inches. Respondent became involved with the Sorrentino Residence when one of the principals of Parker-Stevens contacted him and asked if he would work on the project. The structural engineer who had started to work on the project had moved out of Florida prior to obtaining any permits. Respondent agreed to accept the assignment. Respondent worked on the drawings, as well as on other assignments, for six weeks. He required about 60 hours to perform all of the necessary calculations. Because of poor soil conditions at the lakefront lot at which the Sorrentino Residence was to be built, Respondent had to substitute pilings for a masonry stemwall. To preclude differential settlement of pilings, Respondent performed the calculations necessary to place the pilings so that each was within 10 percent of the others’ axial load. Respondent also performed calculations for numerous other purposes, including designing the beams, floor diaphragm, second-floor bearing wall, exterior walls, and structural ability to withstand wind loads. At the time that he began to work on the Sorrentino Residence drawings, Respondent was still a partner with Architectural Services and Engineering. In July 1997, two weeks after Respondent had sealed the drawings, Respondent became dissatisfied with the business practices of his partner, who was not an engineer, contractor, or architect, and left Architectural Services and Engineering. Construction on the Sorrentino Residence started about six weeks later. When Respondent left Architectural Services and Engineering, he was the sole qualifier for the company, which did not obtain another qualifier for eight months. Following Respondent’s departure from Architectural Services and Engineering, the owner of the Sorrentino Residence contacted Respondent to discuss the drawings. Because the contract was between the owner and Architectural Services and Engineering, Respondent’s former partner objected to any communication between Respondent and the owner and, among other things, made the complaint that led to the commencement of this disciplinary proceeding. At this point, Respondent chose not to have further contact with the owner or construction of the residence. Count One alleges that Respondent’s drawings are deficient because they fail to specify the necessary supplemental framing in the exterior walls of the living room and kitchen. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the supplemental framing constitutes negligence in the practice of engineering. First, not surprisingly, common field practice has addressed the recurring phenomenon of openings in exterior walls. After cutting studs for an opening, all contractors add headers, jack studs, and full-length studs on each side of the opening. The omission from drawings of an element readily supplied by common field practice is not negligent. The Hillsborough Building Department expects drawings to depict supplemental framing, at least if such detail is necessary to construct the building that is the subject of the drawings. This expectation does not establish negligence in this case for two reasons. First, as noted in the preceding paragraph, common field practice obviates the necessity of the depiction of the supplemental framing around openings in exterior walls; thus, such detail is unnecessary to construct the building. Second, the Hillsborough Building Department frequently rejects drawings and plans; thus, a departure from its requirements is not necessarily negligence, at least absent a showing that negligence in engineering is common in Hillsborough County. Additionally, neither the Standard Building Code nor applicable rules specify the minimum contents of drawings. Interestingly, several years ago, the Hillsborough County Building Department eliminated its minimum requirements for drawings. These facts suggest that categoric minimum requirements for drawings must yield to a case-by-case approach that can better address the myriad of circumstances that accompany each design project, including the complexity of the subject structure, the significance of the item omitted from the drawings, and the likelihood that custom or practice will supply the information missing from the drawings. The preceding paragraphs sufficiently address the issue raised by Count One. However, both parties have addressed other issues. Given the resolution of these issues, it is unnecessary to consider whether they have been adequately pleaded. Sheet A-6 of the drawings contains details for a “typical wall section” and “typical shear wall.” The “typical wall section” clearly depicts exterior walls and specifies, for such walls, 2-inch by 4-inch studs spaced 16 inches on center. Sheet A-4 depicts exterior walls as 3 1/2 inches thick, which is consistent with exterior framing of 2-inch by 4-inch lumber, rather than 2-inch by 6-inch or 2-inch by 8- inch lumber. However, General Note 4.4.1 on Sheet A-1 specifies that the exterior framing shall be 2-inch by 6-inch and 2-inch by 8-inch. The only 2-inch by 4-inch lumber is reserved for interior framing. The drawings are inconsistent as to the specification of exterior framing. The inconsistency is obvious and caused the owner to contact Respondent after delivery of the drawings and confirm that he intended the use of 2-inch by 6-inch or 2-inch by 8-inch exterior framing. However, Petitioner has failed to establish that this internal inconsistency in the drawings constitutes negligence. It is not negligence merely because drawings are flawed, even if the flaw requires a contractor or owner to request clarification from an engineer. The flaw in specifying the exterior framing studs is not negligent for two reasons. First, the obvious inconsistency in the drawings, which caused even the owner to contact Respondent, left little chance that a contractor would fail to notice the conflicting specifications. Noticing the conflict, the contractor would either build to the more conservative specifications, which would be the stronger exterior framing studs, or contact the engineer for clarification. Second, the record amply demonstrates that informed engineers differ as to the materiality of the specification that the exterior framing studs be greater than 2-inch by 4- inch. Absent clear and convincing evidence that the structural integrity of the building would have been affected, in terms of its ability to support design wind loads, the flaw in specifying the exterior framing studs does not rise to negligence. Count Three alleges that Respondent’s drawings are deficient because they fail to specify the sheathing thickness and nailing of the floor and roof diaphragms. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the sheathing thickness and nailing of the floor and roof diaphragms constitutes negligence in the practice of engineering. Again, neither the Standard Building Code nor the rules require the depiction of a diaphragm or a specification of its thickness or nailing patterns. The practice of the Hillsborough County Building Department is to require the depiction of the diaphragm if the drawings deviate from the sheathing orientation or nailing pattern specified in the Standard Building Code. Depicting the first floor framing plan, Sheet A-3 specifies 1/2-inch plywood subflooring. As noted by Respondent’s expert, 1/2-inch plywood subflooring would sag, although not collapse; 3/4-inch plywood subflooring is needed, given the 24-inch spacing of the floor trusses. Again, the owner, evidently concerned about this detail, contacted Respondent after delivery of the drawings, and Respondent told the owner to use 3/4-inch plywood. However, nothing in the Administrative Complaint alleges negligence in the misspecification of the plywood subflooring. Count Three alleges only that the drawings negligently omit specifications concerning the floor and roof diaphragm, which would include the plywood subflooring. Specifying the wrong item is not failing to specify an item. Proof concerning the erroneous specification of 1/2-inch plywood subflooring is therefore outside the scope of the pleadings and irrelevant. Count Four alleges that Respondent’s drawings are deficient because they include gable trusses even though the house was not to be constructed with gable trusses. Petitioner has failed to prove by clear and convincing evidence that the depiction of gable trusses constitutes negligence in the practice of engineering. Respondent explained that he simply provided the truss engineer with an alternative roof design, in case the need for an alternative arose. Respondent’s explanation was implausible. It was also imprudent, as evidenced from pages 12-14 of Petitioner’s proposed recommended order. The inclusion of the gable trusses was a simple, but harmless, mistake on Respondent’s part. Although sloppy, the inclusion of gable trusses in the drawings could not possibly have misled the truss engineer, to whom Respondent had properly delegated the responsibility for designing the roof, into designing the wrong roof for the Sorrentino Residence, nor could it have misled the contractor into building the wrong roof for the Sorrentino Residence.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2001. COPIES FURNISHED: Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792 Doug Sunshine, Esquire V.P. for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 William H. Hollimon Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302 Brent Wadsworth Post Office Box 270118 Tampa, Florida 33688 David P. Rankin 3837 Northdale Boulevard Suite 332 Tampa, Florida 33624
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent has been a certified air conditioning contractor, holding License No. CAC009065, and has been the qualifying agent for Residential Air Conditioning Corporation (hereinafter "Residential Air") in Miami, Florida. On October 1, 1985, Residential Air entered into a contract with June Davidson to install air conditioning in her mother's house in the City of Miami on a rush basis because of the health needs of the elderly mother and because Davidson needed to return to New York. Residential Air's salesman was told by Davidson that a medical emergency situation existed for the Davidson job. The following notation appears in the comments section of the contract signed on October 1, 1985: "Please rush this job--woman needs a/c for health ... woman going back to New York--mother needs job." In the contract addendum signed on October 2, 1985, it was noted that Davidson was waiving her 3-day rescission rights because of the medical situation in the family and that the air conditioner needed to be installed immediately. Respondent was out of town on vacation at the time and was not scheduled to return for several days. Respondent has done job drawings and pulled permits for the company over its 16 years of existence. It was Respondent's practice to pull all permits necessary to cover the next several weeks before going on vacation. As a special accommodation to the customer in an emergency situation, Richard Vanni, a part-owner of Residential Air with 30 years of experience in air conditioning installation, assembled a crew to install the system for the Davidson job on October 2, 1985. Mr. Vanni assumed that Respondent would pull the permit on a late basis when he returned from vacation. The ordinance adopting the South Florida Building Code in the City of Miami provides for a late fee in the event an application for job permit is filed after the job begins. It was Mr. Vanni's understanding that in rush or emergency situations legitimate contractors could proceed with work and file late for the permit, that this was acceptable to the various municipal building departments in the south Florida area, and that most building departments are fair in the administration of permit laws and allow appropriate latitude to responsible contractors proceeding in good faith. No evidence was presented that Mr. Vanni or Residential Air had any intent to avoid paying a permit fee, including the appropriate late penalty, or to evade final inspection when the job was completed. Respondent, as qualifying agent for Residential Air, regularly procures permits for all of the company's jobs, and the company is a highly responsible air conditioning contractor. Conner Adams, the Chief Mechanical Inspector for the City of Miami, is aware of no code violations or previous late penalties regarding Respondent or Residential Air and recalls no problems of any kind with Respondent or with the company. Respondent's only previous violation of the state contracting laws involved payment to the Department of Professional Regulation of a small stipulated fine to settle a highly technical charge of using the word "company" instead of the word "corporation" on its contract form prepared by its attorney. The air conditioning unit for the Davidson job was installed with a temporary hook-up which was to be followed by an audit inspection by Florida Power & Light Company and an increase in the electrical service by the electrical subcontractor. The increased service was not done because the customer stopped payment on her check and would not let the company back on the premises. When Respondent returned from vacation a few days later, he immediately became immersed in accumulated office problems and the problem created by the Davidson job. He tried to pacify and accommodate Davidson by visiting the premises and proposing compromises. No one called to Respondent's attention the fact that the Davidson job was not yet permitted. Respondent was not focusing on that issue, and with the other problems engrossing him, it simply slipped his mind to inquire or to check. 12. As Respondent explained, it would be absurd for him to intentionally not procure a permit for a job involving electrical service increase or customer problems. Lack of a permit is readily discovered in such instances and may provide an excuse for the customer to try to avoid payment. Mrs. Sylvia Vanni, wife of co-owner Richard Vanni, is and has been the office manager of Residential Air. Her system has been to place pending job orders and contracts into a "3-day rescission file." After the 3-day rescission time has elapsed and payment arrangements have been made, the job orders or contracts are routinely given to Respondent to pull permits for those jobs. Because Respondent was not present when the Davidson job was undertaken, the contract was not then given to him to pull a permit. When the job was started, Mrs. Vanni mistakenly placed the contract into the "jobs in progress" file, and it was never presented to Respondent to pull a permit after he returned from vacation. The electrical subcontractor also did not notify Respondent of the need for a permit. Since the company was not allowed back on the premises, the electrical subcontractor was not called upon to apply for an electrical permit to increase the electrical service, which would have called Respondent's attention to the need for a mechanical permit. The system and procedures normally relied upon in the office did not function to alert Respondent to apply for a permit on the Davidson job. When the City of Miami Building Department contacted Respondent pursuant to Davidson's inquiry whether a job permit existed, Respondent immediately made application, paid the late fee, and obtained a mechanical permit on November 5, 1985. Respondent's plans and drawings for the job were deemed satisfactory by the City of Miami Building Department. No evidence was presented of any intentional or willful disregard of, or obstinate indifference to, the building permit laws. Respondent's delay in obtaining a late permit after he returned from vacation was caused by simple oversight in the midst of trying to satisfactorily resolve a difficult customer problem in that no one advised him that a permit had not been pulled or that the Davidson job was not one for which he had pulled a permit prior to going on vacation. The initial charging document in this cause is an Amended Administrative Complaint signed on August 24, 1987. The charges in the Amended Administrative Complaint are the same charges that were contained in an Administrative Complaint filed by the Petitioner against Respondent on July 24, 1986. That complaint was voluntarily dismissed by Petitioner on February 10, 1987, just before the final hearing scheduled in that case for February 16, 1987. Petitioner's probable cause panel met on August 12, 1987, and approved the filing of the Administrative Complaint which became the initial charging document in this cause. The probable cause panel was not told that charges related to the same matter had been dismissed by the Department six months earlier. Indeed, no explanation or discussion of the charges occurred at all. There was only an approval of the prosecutor's recommendation, and the entire discussion of the probable cause panel regarding the existence of probable cause to file the Amended Administrative Complaint consists of the following exchange: MR. SHROPSHIRE [agency attorney]: The next case is against Mr. Heisler, No. 65634. Prosecutor recommends a finding of probable cause and the filing of a formal complaint. MR. CARSON: I'd like to make a motion we accept the prosecutor's recommendations. MR. SUTTON: Second. MR. CARSON: All in favor say aye. MR. SUTTON: Aye. MR. CARSON: All opposed? MR. SHROPSHIRE: The next case is ... Whether probable cause was properly determined was reserved in the Prehearing Stipulation as a issue for determination at the final hearing in this case. No evidence bearing on the probable cause determination was offered by the Department. The charges in the Amended Administrative Complaint were brought (signed) on behalf of the Secretary of the Department of Professional Regulation by Douglas A. Shropshire, an attorney and the Tectonics Section Chief. Whether Mr. Shropshire had authority to institute the complaint on behalf of the Department was also reserved as an issue for final hearing. Mr. Shropshire is not the head of the agency. The Department offered no evidence of his designation to act for the Secretary in regard to instituting disciplinary charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing with prejudice the Amended Administrative Complaint filed in this case. DONE and RECOMMENDED this 10th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4452 Petitioner's proposed findings of fact numbered 1-10 have been adopted in substance or verbatim in this Recommended Order. Respondent's proposed findings of fact numbered 1-27 have been adopted in substance or verbatim in this Recommended Order. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 M. Stephen Turner, Esquire Post Office Box 11300 Tallahassee, Florida 32301-3300 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Raymond E. Hirst, Jr., professional engineer, was licensed as such by the State of Florida under license number PE 0017307. Prior to March 22, 1983, the Respondent, for Mech-Mar Engineering Company, Inc., designed a storage bay and mini- warehouse project to be built by Ruth Stein Construction for William M. Kwasniki, to be located on South Babcock Street in Palm Bay, Florida. Petitioner designed the facility and signed the plans for construction on March 22, 1983. A note clearly marked on the sheet index on the upper right hand corner of the first page of the plan set reflects, "The engineer's services do not include supervision of the construction of this project." The plans consist of three sheets of drawings, each of which is sealed and signed by the Respondent. The first sheet reflects the foundation plan. The second shows the electrical riser and firewall detail, and the third reflects the elevations. On or about April 3, 1983, the contractor, Ruth Stein, submitted these plans to the City of Palm Bay building department. The plans were approved for construction by the office of the chief building official, Paul Olsen, and formed the basis for the issuance of the construction permit. Neither the engineer's specifications nor calculations were submitted and filed with the plans. However, calculations were not required by the City of Palm Bay at that time. Two amendments to the plans were filed by the Respondent on May 31, and August 10, 1983. No revised drawings were submitted, however. The drawings that were submitted by Ms. Stein, but drawn by Respondent, were used to insure that the plans conformed to standard building codes, zoning codes, etc., but were not reviewed by the city for compliance with engineering standards and no engineering analysis was done by the city on these or any other plans at that time. The need to do so was apparently recognized later, however, as such analyses are now done on a routine basis. The plans were also to be used by the city's inspection staff to compare work being done by the contractor with the plans to insure that the work conforms to them. During construction, the building being erected according to Respondent's plans, a concrete block structure, collapsed. This collapse occurred sometime prior to May 20, 1983. After the structure collapsed, the city building office again approved the plans drawn by Respondent for reconstruction. The contractor was told to clean up the site and was then allowed to rebuild. Not only the original plans but the amendments referred to above, including that dated August 10, 1983, called for partitions within the building. After rebuilding, the structure was inspected by the city and a certificate of occupancy was issued in August, 1983. No complaints have been filed regarding this construction since that time. After the collapse, an inspection of the collapse site revealed that in some areas on the west part of the structure, cells of the concrete blocks being used to form the walls had not been filled with concrete as was required by the design submitted by Respondent. In the opinion of Mr. Olsen, this defect was a fault not of the Respondent but of the contractor. No determination was made by the city as to: whether the block walls as designed by Respondent met Standard Building Code (SBC) requirements; whether the walls were supported laterally as required; whether anchorage of the roof trusses to the walls was accomplished; whether Respondent properly, or at all, designed a roof diaphragm for this project; whether the walls were adequate to meet the wind load requirements (the SBC suggests that maximum wind velocity standard is 90 mph.); whether the lentils were adequate; and whether the truss anchorage limits were satisfactory. (According to Mr. Olsen, this decision is left up to the engineer who designs the structure.) The city found, however, that a part of the reason for the collapse of this structure was that the trusses for the roof were set too soon, were not adequately braced, contained questionable materials, and wore questionably fabricated. Though the city was not critical in its analysis of Respondent's performance, the experts retained by Petitioner to evaluate his drawings were. Mr. James O. Power, who has been a registered structural engineer since 1947 did not examine the building site but is aware of the project in question. He reviewed the drawings prepared by Respondent, photos taken of the site, the investigative report, letters and correspondence from Respondent with calculations contained therein, and the Respondent's amendments to the original drawings. On the basis of this evidence, he formed an opinion as to Respondent's performance as an engineer on this project and prepared several letters on the subject dated July 6 and October 21, 1983, and January 30 and September 7, 1984, all of which constitute his opinion as to Respondent's performance. In substance he concluded that Respondent's engineering performance on this project was unsatisfactory showing basic negligence and lack of due care as well as a lack of understanding of the basic engineering requirements for the job. In his opinion, overall, the drawings lack sufficient detail. For example, they, (a) show no interior partitions (partitions were defined in an amendment to the drawing filed after the collapse); (b) show that while the southern wall has few openings, the north wall has many, (this is significant in that because of the lack of partitions, the walls must resist the winds playing upon them as vertical cantilevers); (c) show that the number 5 vertical bars in the fill cells are 12 feet apart, (to serve as reinforced masonry, they should be 4 but no more than 8 feet apart depending on the circumstances); (d) reflect a ceiling height of 14 feet whereas later drawings show a difference in elevation; (e) show that the tie beam is to be constituted of inverted masonry U-beam 16 inches deep filled with concrete and reinforcing steel without providing for any obvious way to insert the concrete within the beam; (f) failed to show with detail the strap makeup or method of connection for the hurricane straps to be used to hold down the roof trusses to the walls, (the drawings show that the strap is to loop over the truss and if the straps do not do so, the connection is weak); (g) reflect that the door height at the openings on the north and south side doors are different than the tie beam height but there is no showing of how the weight of the roof is to be distributed over the door head only 8 inches below the tie-beam (this could contribute to the collapse of the building); and (h) failed to show drawings of trusses by the Respondent. In this regard, the truss company's drawings and specifications are insufficient. Since the Respondent's drawings do not define with particularity how the trusses are to be constructed, the truss fabricator must make assumptions as to the stress and load to be applied. With regard to the pre-engineered and pre-manufactured roof trusses, Mr. Power is of the opinion that the designer, Respondent, should have: (1) stated his criteria for the design of the truss (Respondent did not do this); (2) stated the qualifications of the designer (Respondent did not do this); (3) submitted clear instructions regarding his design (Respondent's are unclear and unsatisfactory). Mr. Power also indicates that in his experience, bracing for the trusses is installed at the building site and that only the basic truss is constructed at the truss company's plant. Respondent, on the other hand, contends that the practice in Brevard County is for the building designer, as here, to give the basic specifications needed for the truss, and thereafter, the truss designer, working for the truss company, designs and builds the complete truss for delivery to the site. If Mr. Power's position is to be believed, personal supervision of the designer would be required at the site once the basic truss was delivered. Here, however, Mr. Power operates out of Miami and Petitioner has failed to show that he is familiar with the trade practice in the area involved in this dispute. Respondent's position is somewhat supported by the fact that his plans contain a disclaimer of supervision and no issue was made that this is a forbidden or unaccepted practice. Consequently, it cannot be said that Respondent's design of the trusses in this case was faulty. Mr. Power also identified several "design deficiencies" in Respondent's work. Among these were that there was no requirement for the use of reinforced masonry which is different from concrete and that Respondent's drawings provided no details or standards for the mortar or grout, the substance used to fill the holes in concrete blocks which should have a minimum slump of 8 inches. (If one tried to fill these cells from the top of a 14 foot wall, it is most likely that the cell, the hole within the blocks, would not be filled.) Further, the formulae used by Respondent in his calculations are for solid materials in the walls -- not for cinder block which was the material called for here. On the basis of the above discrepancies, it appeared to Mr. Power that Respondent did not understand the difference between the requirements for construction with concrete block and those for construction with reinforced masonry. In addition, according to Mr. Power, the reinforcing walls inserted in the design by the Respondent after the collapse of the building are of materials not permitted by the SBC. Also the SBC requires that the ratio of length to width of roof diaphragm should be no more than 4. The purpose of this is to provide support to the top of the wall so as to resist loads placed upon it by the force of wind. Here, Respondent's design has not adequately provided this reinforcement, in Mr. Power's judgment, and the design does not meet the SBC requirement. The SBC also requires designs of buildings to be constructed in the Palm Bay area to be able to withstand 90 mph winds. Mr. Power's calculations based on Respondent's plans and drawings show it is questionable that a building built pursuant to Respondent's plans would sustain 90 mph winds. The fact that the chances are only one in fifty that in any given year winds of this speed would be reached is immaterial. As to the filling of the holes (cells) in the concrete block, Mr. Power contends that it is a good practice to show in the drawing a breakout in the block at the bottom of the wall so that the builder can see that the concrete has in fact gone all the way down to the bottom as it should. Here, however, the building code does not require this to be done. Again, considering the Respondent's use of cement instead of grout to fill the cells, the Respondent followed county practice and the SBC does not specifically require the use of grout. Nonetheless, Mr. Power is of the opinion that even though Respondent's drawings indicated that he would not inspect at the site, it was unreasonable for Respondent to expect the cells to be filled since it is well known that many contractors do not inspect to insure that the cells are filled as called for. Mr. Power is also of the opinion that the lintels as described in one of the amendments to the basic drawings, though permissible for use, are inadequate to handle the indicated roof load and the drawings prepared by Respondent did not show the lintel capacity. Mr. Power contends that the SBC requires drawings to show sufficient detail to indicate the intent of the designer to allow the contractor using the drawings to conform to code standards. Admittedly, this is subjective criteria, not an objective one, as to what constitutes sufficient detail. The amendments added to the original designs helped somewhat to correct the deficiencies, but do not make them adequate. Taken as a whole, the drawings are not adequate, in the opinion of Mr. Power, to comply with the SBC. They are not adequate to pass on the designer's intent to the contractor and they are not adequate to show the designer's understanding of design elements. These errors and deficiencies described above are, in the opinion of Mr. Power, significant and not minor. Based on his analysis of the overall drawings and situation, he concluded that Respondent has not demonstrated his capability to handle this particular task which, in the opinion of Mr. power, is relatively simple. Respondent's drawings and the other documents pertinent to the project in issue here including calculations, correspondence, photos, and the investigative report, were also reviewed by Ernest C. Driver, a Florida licensed consultant engineer operating in Cairo, Georgia. Mr. Driver also reviewed Mr. Power's reports and is in complete agreement with his conclusions. He did some calculations on his own and on the basis of them, formed an opinion of Respondent's performance as an engineer on this project. He found that the reinforcing of the cinder block cells on the walls were too widely spaced at 12 foot centers instead of 4 to 8 foot centers. In addition, he did not agree with the engineering conclusions drawn by the Respondent. The calculations performed by Respondent were, in his opinion, improper and as a result, the design is over-stressed by approximately 215 percent. This came about, apparently, because Respondent designed a wall as though there were no doors in it. In addition, the way the tie beam is designed, it is impossible to get the reinforcing concrete into the "U." Further, the hurricane straps required to affix the roof trusses to the tie beam cannot be attached to the beam itself. Also, the design called for concrete block to be installed above the doors. This procedure placed as much as four times the load the lintel should carry. Mr. Driver also found that the diaphragm used by Respondent was of gypsum board which, in his opinion, is not a proper material for diaphragms. Also, according to Mr. Driver's interpretation of Respondent's plan, there is no way that the wind shear force applied to the diaphragm can be transmitted to the side wall and thence down to the earth. This is a definite deficiency and Respondent's drawings and notes are not complete enough to allow a clear determination of what is required as to materials to be used and how the work should be accomplished. Other deficiencies are seen in that the drawings show a 230 foot long building without an expansion joint. In Mr. Driver's opinion, this is far too long for construction without such a joint. In addition, the 26 foot high end wall is not addressed in the design which has no indication of how the roof is to be attached to it. Mr. Driver concurs with Mr. Power's opinion regarding the insufficiency of the plans and specifications offered by Respondent for the roof trusses in that there is no framing plan nor are there specifications identified for the trusses. Shop drawings should have been provided instead of only a cut sheet. While this witness does not know what the current Brevard County practice regarding the design and construction of trusses is, he is convinced that it is as Respondent says it is, to wit: that they are completely fabricated at the shop and delivered completed for installation to the job site, this is a poor practice. Connected to the issue of roof trusses is that regarding the metal hurricane straps which Respondent indicated his plans called for. These metal straps, which can easily be bent by hand are, in the opinion of Mr. Driver, a poor method of affixing the trusses to the tie beam. There are too many things that can go wrong such as hinging, the lack of a firm seating for the strap in the concrete, the bending of the metal, and the pulling of the affixing nails through the holes in the strap thereby resulting in no grip. In addition to his dissatisfaction with the use of concrete to fill the cells in the cinder blocks, Mr. Driver also feels that the use of concrete to fill a continuous 14 foot cell is improper. In his opinion, the drawings should call for a solid block every 4 feet and for weep holes through which compaction can be noted periodically throughout that distance. All of this should be in the engineer's notes. The notes by Respondent do not identify these areas. Even though Respondent's notes called for the 14 feet to be filled, his plans failed to provide methods to insure that complete filling was accomplished. Examination of the pictures of the wall after the collapse reveals that complete filling was not accomplished and this failure on the part of Respondent to provide a reasonably foolproof method of insuring complete compaction cannot be excused and responsibility shifted to the contractor by the mere statement by Respondent on the plans that he would not inspect. Engineering practice is made up of judgment as well as the specific formulae which can be obtained from engineering textbooks. There are assumptions which may be made -- some good and some bad. In the opinion of Mr. Driver, the defects described above indicate that Respondent's assumptions were bad. As a result, his judgment was bad. He feels that, in light of all the evidence, Respondent was negligent, failed to use due care, failed to conform to accepted engineering principles, failed to accomplish drawings sufficiently detailed to instruct the contractor as to exactly what needed to he done, and failed to provide drawings which, if followed exactly as presented, would by themselves, enable a builder to construct a safe structure. Here, based on the drawings prepared and submitted by Respondent, a builder would have to demonstrate a high and exceptional degree of expertise in order to fill in the omitted details required to make the building safe. Acceptable drawing standards are not defined with specificity in the SBC. Much is subjective rather than objective. For example, nothing in the SBC prohibits the use of gypsum board as a horizontal diaphragm, but, in the opinion of Mr. Driver, it is not common practice to use it for such. This goes to the question of judgment. In any event, the code may be erroneous in some particulars and not all answers are contained in it. It is for this reason that the law requires the use of a licensed engineer whose judgment fills in the gaps left by the code. Here all the defects identified in Respondent's drawings are within the province of an engineer. These are the items an engineer is needed for to accomplish. Here, in the opinion of Mr. Driver, there are too many defects and Respondent's work does not conform to any of the standards used in the engineering community as to schooling, information gained from working with other engineers, or the witness's personal experience. In rebuttal to the above, Respondent presented no experts of his own, but testified as to his disagreement with the analyses of Petitioner's experts. The testimony by Mr. Power and Mr. Driver is found to be accurate and descriptive of the defects in Respondent's performance. There are a few exceptions such as where local Brevard County practice differs from the experience of these experts, however, taken as a whole, the evidence clearly indicates Respondent's shortcomings for the most part. The testimony of the experts has established a series of defects in Respondent's performance which he has failed to satisfactorily rebut.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, RAYMOND HIRST, be placed on probation for one year, that he be reprimanded, and that he pay an administrative fine of $500.00. RECOMMENDED this 19th day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymond Hirst 379 Franklyn Avenue Indiatlantic, Florida 32903 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Board of professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Ronald L. Hurt, was a licensed professional engineer having been issued license number PE 0032435 by petitioner, Department of Professional Regulation, Board of Professional Engineers (Board). Respondent was first licensed as a professional engineer in Kentucky in 1965 and received his Florida license in 1982. When the events herein occurred, respondent was a shareholder in and served as president of Anchor Engineering Company (Anchor) in Naples, Florida. He also supervised the structural engineering portion of the firm's business. He has since terminated that relationship and is now affiliated with another engineering firm in the same city. In August 1989 the City of Cape Coral (the City) issued an invitation to various engineering firms, including Anchor, to submit proposals to investigate the structural integrity of a seven year old abandoned building owned by the City and located on St. Jock Boulevard. The City was considering whether to complete construction of the building and convert it into a community theater or to demolish the existing structure and build a new facility. At that time, the building was approximately 90% complete but without a roof and was between 6,000 and 8,000 square feet in size. Anchor was the successful "bidder" and respondent ultimately submitted a final written report to the City. Relying upon that report, the City decided to continue completion of the building. The project was successfully completed and is now known as the Cape Coral Community Theater. However, an engineer from another firm in Cape Coral obtained a copy of respondent's report, reviewed it, and based upon his belief that the report was deficient, filed a complaint against respondent with the Department of Professional Regulation (DPR). That prompted an investigation by DPR and the issuance of an administrative complaint charging respondent with negligence in the preparation of his report. The Scope of the Engagement The City's decision to seek a structural report came after another professional engineer, James A. Schivinski, had performed an inspection and prepared a "general physical condition report." The work was performed on an undisclosed date by Schivinski without charge and as a favor to the City. After making a field inspection, Schivinski recommended the City have a structural analysis of the building performed by a professional engineer. This was because he had observed "serious defects in the masonry wall construction of the building". Until a further assessment of the structural integrity of the building was made, Schwinski recommended that "work (should) not be continued." 1/ Schwinski's conclusions and recommendation are contained in a written report submitted to the City and received in evidence as petitioner's exhibit 2. Acting upon Schivinski's recommendation, on August 1, 1989, the City, through its contracts administrator, Al Melendez, telephonically solicited proposals from various engineering firms. Because the City desired to make a decision on the building as soon as possible, Melendez asked that each firm submit its proposal by the following day. Anchor did so and proposed to complete the work for $4,500. Other proposals included one by the engineering firm of Jenkins and Charland, which submitted a proposal in the amount of $14,000. Anchor's proposal was accepted by the city on August 2 and Anchor was told to complete a written report within two weeks from the date on which it was selected. The scope of the engagement was not reduced to writing by the City. However, according to Melendez, Anchor was to look at Schivinski's report, review a set of original drawings, and advise the City if it could "reasonably finish up the building." Anchor was not requested to perform testing to verify the strength of materials nor to furnish a final design report for the project. Further, the City did not expect Anchor to give them actual cost estimates for performing any required modifications. In its response to the invitation, Anchor agreed to (a) perform an on- site structural investigation of the existing structure ($1500), (b) review existing drawings of the structure ($1800), and (c) issue a written report based on the findings in the first two steps ($1200). The City agreed with this scope of services and Anchor proceeded in accordance with its proposal. As noted earlier, both the City and Anchor understood that no testing of materials (e. g., compression, prism and compaction tests) was to be performed by Anchor but instead would be done at a later time by a specialized testing firm if the City decided to continue with the project. The Preparation and Issuance of the Report Two Anchor professional engineers, Tony Boumitri and Paul Endres, promptly visited the building site on two occasions and made a visual inspection. In addition, respondent made two subsequent visits to the site to confirm his colleagues' conclusions. They also reviewed Schivinski's report and the original building plans for the structure. After a preliminary draft was prepared by Boumitri on August 11, 1989, respondent met with city officials for three hours to explain its content, answer questions and determine if further information was required. A final report entitled Structural Investigation Analysis and Report was then prepared by respondent, and another three-hour meeting with city officials was held to explain its content. On August 18, 1989, respondent signed and sealed the final report and delivered it to city officials. Thereafter, respondent met for several hours with the full city commission and gave an oral presentation concerning his report. The record raises an inference that a transcript of the commission meeting is available, and respondent's remarks and explanations given to the commission are available for review by any interested party. Among other things, respondent advised the City that his report was a preliminary report, that testing and confirmation of materials was still required at a later date, that the structure did not meet code requirements, but that with appropriate modifications the building could be used for its intended function. The Genesis of this Complaint On an undisclosed date after the report had been filed, a professional engineer, Jack T. Sauerland, who happened to work for the engineering firm which had submitted the unsuccessful $14,000 bid, requested a copy of respondent's report from the City. Ostensibly for the purpose of acting as a concerned citizen and taxpayer, Sauerland reviewed the preliminary and final reports, noted what he perceived to be various deficiencies in the final report, discussed those observations with certain city employees, and filed a complaint against respondent with DPR. That precipitated the filing of this action against respondent. Standards Governing Professional Engineers Both parties agree there are no written standards which set forth the specific matters that a professional engineer must put in an engineering report. According to the Board's expert, this is because a report can be used for a number of purposes and it would be difficult to write a rule that would fit all situations. However, the Board expert identified two broad standards, both set forth in Rule 21H-19.001(3)(a), Florida Administrative Code, that must be followed by a professional engineer when drafting a report. First, the engineer must use "due care" in preparing the report, and secondly, he must have "due regard for accepted engineering principles". According to the expert, these principles include such things as technology, mathematics, logic, and the clear and precise use of language. In other words, a report must proceed logically from evidence to assumption to analysis to conclusion and do so in clear and precise language. It is also inappropriate to omit information from the report even if the client is aware of the information being omitted. This is because persons using the report at a future time would not be privy to that omitted information and would be unable to evaluate its reliability. Thus, while an engineering report must satisfy the clients, it must also be complete enough to safeguard the public health, safety and welfare. The expert also opined that when an engineer's client is a governmental entity, such as a city, it is improper to supplement a written report by oral communications because (a) third parties relying on the written report at a future time would have no way of reviewing those oral comments and (b) the public records law dictates that such reports be reduced to writing. The Contents of the Report The report in question has been received in evidence as a part of petitioner's composite exhibit 6 and consists of ten pages including photographs. The written portion of the report is four and one-half pages. In addition, respondent submitted twelve pages of notes and calculations in conjunction with the report. The report is divided into six sections, including summary of findings, background information, field investigation, analysis, recommendations and conclusion. The scope of the report was described on page one as follows: Based on the data obtained, and based on the available drawings, Mr. Boumitri and Mr. Endres performed their structural analysis to deter- mine the adequacy of the structure, in its present condition, to serve its intended purposes. The intent of this investigation and report is to determine whether the existing structure can be safely completed to serve its intended purposes according to sound engineering and construction practices. Under the field investigation portion of the report, there are eight evidentiary findings. Because they (and other portions of the report) are in issue, they are repeated below: The foundation seems to have been con- structed according to the architectural plans, based on the test pits that have been excavated at three different locations of the building. Some of the pilaster columns have not been completed or may not have been constructed according to the architectural plans. Some of the pilasters on the north side as well as the south side of the building do not extend to the top of the tie beam. Using an "R" meter we have been able to determine the actual location of the existing bars. Some of the vertical reinforcement is mislocated and other vertical reinforcement is missing. Most of the horizontal joint rein- forcement was placed at approximately 4'-0" O.C. Numerous cracks were found in the walls and slabs. Other cracks or separations exist between the walls and the concrete masonry pilasters as shown on the north wall of the building. Most of the masonry units were constructed as running bond, yet some of the units were constructed as stack bond. Some features of less importance such as the interior stairs on the East end of the building are rotated 90 degrees from their original design as shown on the plans. Other walls and windows may have been added, de- leted or relocated and they no longer conform to the architectural plans. The workmanship in placing the masonry units varies from adequate to far below ade- quate level of today's standards. Most of the walls are in a wavy condition which may require a varying thickness of stucco finishes. Immediately after the foregoing findings, the report contains a section entitled "Analysis" consisting of six paragraphs, with the caveat that such analysis "takes into consideration the lack of inspection." They read as follows: The foundation seems adequate to carry the intended load in the interior locations around the stage and exterior locations as well. The number and location of the existing vertical reinforcement is not adequate enought to carry the intended lateral load and doesn't meet the minimum requirements of the 1979 edition or the 1985 /86 edition of the "Standard Building Code". The quantity and spacing of the existing horizontal joint reinforcement is adequate to meet the minimum area of steel reinforcement specified in the 1985/86 edition of the "Standard Building Code" for reinforced masonry. The height to thickness ratio of most of the masonry walls, interior and exterior, is above the recommended value in the 1979 or the 1985/86 edition of the "Standard Building Code." The beam over the stage area appears to be capable of carrying its intended load. This beam, due to the direction of the joists carries little of the roof load and is loaded nearly to its intended load presently. Little or no deflection is currently visable (sic). The steel joists appear to be capable of carrying their intended load based on data given by Tom Rayburr of Florida Aluminum. There are also five recommendations in the report which follow the analysis. They read as follows: A field survey be implemented to document the as built features of the building. Finish the construction of all pilasters as shown on the architectural plans. Provide a #5 bar in each pilaster, dowel the bottom end into the footing, dowel the top end into the tie beam, then fill with grout. Where the existing vertical reinforcement, whether in term of pilasters or filled cells, exceed the 5'-0" maximum spacing, provide a #5 hook bar at each roof joist location or at 5'-0" maximum spacing where no roof joist exits at exterior walls and at 13'-0" o.c. at interior walls. Weld the bar directly to the plate or to the bar of the tie beam. The other end of the #5 bars will extend to the bottom of the wall and will be drilled and epoxied into the foundation using epoxy non-shrink grout. Form and pour a minimum 8"x8" pilaster around it subject to Architectural approval. Where a pilaster is not feasible, provide a flat A36 steel bar (2"x1/4" minimum) instead of the #5 bar. The flat steel bar shall be hooked top and bottom to the tie beam and footing respectively. Alternatively, instead of the proposed pilasters, place 6x6 W2.XW2.9 W.W.F. flat sheets along both faces of the masonry walls. A minimum of 1" thick non-shrink grout shall be placed on each wall face. The welded wire fabric mesh shall be connected with metal ties thru the masonry wall at 32" intervals. Stucco finishes with standard metal lath shall be provided or as specified by the Architect. The ultimate conclusion of the report reads as follows: Although the building in its present condition does not meet the minimum code requirements, it can be reinforced in an efficient manner that would render it capable of serving its intended function. Criticisms of the Report It should be noted that the agency did not allege nor prove that the scope of investigation and review by respondent in preparing the report was improper or that the client was dissatisfied with his services. Also, the Board does not question the competency of respondent. Rather, the Board contends that respondent was negligent by failing to include greater detail and explanation in the written report. To support this charge the Board presented its consulting professional engineer, James O. Power, and the testimony of Sauerland, the complaining witness and also a professional engineer. Besides himself, respondent presented the testimony of two professional engineers, an architect, and the city engineer. The more credible and persuasive testimony is set forth below. It is true, as respondent points out, that in preparing his report, the agency's consulting engineer did not review the original building plans, make an on-site inspection or read the transcript of the city commission meeting when the report was formally presented to the commission. Thus, the expert was not privy to the many discussions between respondent and the City during the preparation of the report. However, Power considered none of these matters to be essential since his criticisms related only to the actual contents of the report itself. The DPR expert first found that "the scope of the investigation was never clearly defined" in the report. Although the witness did not specifically identify which portion of the report he considered to be deficient, it may be inferred that the witness was referring to the statement of intent (scope of report) recited in finding of fact 12 and the following language found in the first paragraph of the "Field Investigation" section of the report: Our field investigation has been performed for the purpose of establishing whether the structure is constructed according to plans and specification by Stout & Gerald, Inc. Architects of Cape Coral, Florida. According to Power, the report should have included a description of services to be provided by respondent to the client pursuant to their agreement. This would include such matters as whether or not (a) testing would be performed, (b) the structure would be evaluated for code compliance, (c) a design for corrective measures would be furnished, (d) a cost estimate for such modifications would be given, and (e) the investigation, evaluation and recommendations would be based on sound engineering principles. Although the parties clearly understood the scope of the investigation through several meetings and conversations, the written report itself did not adequately memorialize that agreement. 2/ Therefore, respondent is in technical violation of the engineering principle that he use due care in preparing the report. The expert also pointed out that respondent merely stated his assumptions without giving any justification for the same in the report or attached calculations. Those assumptions pertained to the foundation capacity, strength of the reinforcing steel, strength of the concrete, and strength of the concrete block masonry. While DPR's expert found most of the assumptions to be reasonable, the report itself does not state on what basis (e.g., testing, estimates, visual inspection, industry standards, experience, or other factors) the assumptions were made. Unless the logic underlying the assumptions is disclosed, a third party using the report would have no way to ascertain the reliability of the conclusions. While respondent may have orally explained the basis for his assumptions to city officials, and there was no uncertainty on the part of the client, a technical deviation from the due care principle occurred through this omission. Finally, the expert opined that the report contained no logical justification for the conclusions and recommendations. Put another way, the analysis proceeded illogically from the four assumptions in the report. For example, even though the report found a number of deficiencies in the masonry construction, including findings that the work did not adhere to the original drawings and that ratios did not meet building code requirements, the analysis concluded that the masonry work was done in accordance with "acceptable standards under engineering inspection." To this extent, the written report deviated from the engineering principles of logic and clear and precise language, and that it be prepared with due care. Based upon the deficiencies cited in this and the previous two findings, it is found that respondent was negligent in the practice of engineering in that he failed to use due care and to have due regard for acceptable standards of engineering principles. 3/ At hearing, respondent explained the scope of his investigation, gave the bases for the assumptions made in the report and recited the manner in which the conclusions and recommendations were drawn from the facts and assumptions. While these were valid and competent explanations, and had previously been orally given to the City, they were not fully incorporated into the written report. Testimony on behalf of respondent by the project architect established that, from an architect's as opposed to an engineer's perspective, he found the report satisfactory and "in keeping with the standards of other reports" given to him by engineers in the community. However, this testimony has not been accorded the weight given to the testimony of petitioner's consultant. Finally, the testimony of respondent's two engineering experts simply confirmed the fact that no specific written standards exist as to the content of engineering reports, and that in addition to the written report, it is a common practice for an engineer to supplement that report with oral advice to his client. Mitigation In mitigation, it must be noted that respondent's competence as a professional engineer is not in issue. Further, the City was completely satisfied with the report and encountered no problems during the subsequent completion of the building. Indeed, at hearing two city officials expressed satisfaction with respondent's work and the project architect found the report to be satisfactory. Moreover, there were no damages suffered by the client, and the public was not endangered by respondent's misfeasance. Respondent's only fault was in not reducing to writing the additional detail and explanation which he gave to city officials in face to face meetings. Finally, during respondent's twenty-five year career as a professional engineer, he has never been subjected to disciplinary action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 471.033(1)(g), Florida Statutes (1989) and that he be given a private reprimand. RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1991.
Findings Of Fact Mr. George O'Green hired Len Berlin, who he thought was a registered architect, to prepare plans for a commercial building he desired to erect at Naples, Florida. After the plans had been completed O'Green learned that Berlin was not registered and the county would not accept his plans. Berlin thereafter presented O'Green with the same plans containing the seal and signature of Respondent. In his answer to the Administrative Complaint Respondent admitted that he checked, corrected, and signed the plans brought to him by O'Green so O'Green could get his building permit, although the plans were not prepared by Respondent or prepared under his supervision or control. O'Green testified that he did not meet Respondent until after the permit had been obtained. Martin Waxman, a draftsman, is a member of the First Assembly of God Church in Ft. Myers and volunteered to prepare certain plans as a contribution to the church for the proposed addition to the church. Waxman prepared Site Plan, Foundation Plan, Elevations, kitchen cabinet elevations and three wall sections. Waxman had no connection with Kimball and after preparing the plans be gave them to the pastor of the church. Thereafter Kimball, after checking the plans and making some minor changes, placed his seal and signature on these plans. In his testimony given before the Board (Exhibit 8) Respondent admitted that the structural plans for Pointe South Condominiums signed by him had been prepared by a draftsman who contacted Respondent to get his seal and signature on the plans, and that he was not contacted directly by the owners of the building. He further admitted that the foundation plans were done by a structural engineer not registered in Florida since he did not consider himself fully qualified in this field. However, these plans all contained Kimball's seal and signature. Respondent obtained his degree in electrical engineering and worked for a power company for 17 years before going into business for himself in 1968. He has had no training in structural design but has acquired certain experience erecting small waste treatment plants and two-story dwellings. He is familiar with various engineering manuals which contain tables used by engineers in determining design criteria for various structures. The Pointe South Condominium is a precast concrete masonry six-story structure containing 6500 square feet per floor with reinforced masonry bearing walls. The plans did not contain roof construction detail, provide design load for which the roof was to be designed, or indicate horizontal loads for which the roof was to be designed. Similarly the plans for the precast floor construction was lacking information on design requirements in that horizontal load requirements were not shown. Of more serious import in this building is the foundation details which show foundation to be less than 50 percent adequate. The gravity loads alone amount to more than the foundation was designed for and a safety factor of 2.5 to 4 is normally used in this type structure. The design plans for the church addition were also inadequate. There the second floor is supported by steel joists 4 feet apart without any bridging to increase the stability. The spacing of these joists is such that additional details are required on the plans approved by Respondent. Although designated as classroom on the plan it is large enough for an auxiliary assembly area and the plans do not provide adequate strength for this purpose, thus creating a hazardous condition. The roof design is not complete as to detail in the same manner as noted above for the condominium. A canopy attached to the building wall covering a walkway is inadequately supported by the 4" x 3/8" lag bolts provided on the plans to secure this canopy. Nothing in the canopy design was provided to resist distortion of the canopy in high winds. The additional stresses thereby created results in a hazardous situation. With respect to Charge III that Respondent was performing work constituting the practice of architecture, one witness opined that the plans for the Pointe South Condominium involved the practice of architecture as architects have traditionally performed this type of work. This witness considered it unauthorized practice of architecture for any engineer to design, plan, and build any church, multiple family housing or multiple storage structure. Respondent acknowledges that approximately 25 percent of the design of this condominium involves architecture but considers this as incidental to the major structural design that is performed by engineers.
